State v. Johnson

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Shane Isaac Johnson, Appellant.

Appellate Case No. 2017-000873

Appeal From Richland County
R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2019-UP-411
Submitted November 1, 2019 – Filed December 31, 2019

AFFIRMED

Appellate Defender Taylor Davis Gilliam, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., Assistant Attorney General Vann Henry Gunter, Jr.,
and Solicitor Byron Gipson, all of Columbia, for
Respondent.

PER CURIAM: Shane Isaac Johnson appeals his conviction for inflicting great
bodily injury upon a child under section 16-3-95(A) of the South Carolina Code
(2015), arguing the trial court erred in (1) denying his motion for an independent
psychological examination of the child victim (Child); (2) allowing the State to call
an expert witness even though the State failed to give Johnson notice of the
purpose of the expert's testimony; (3) denying his motions for a mistrial after the
State's expert witness testified that Johnson burned Child as a form of discipline;
(4) denying his motion for a directed verdict because the State did not prove he
acted with specific intent; (5) admitting cumulative photographs of Child's burns;
and (6) not charging the jury with accident or specific intent. We affirm.

FACTS

On October 7, 2015, Johnson and Child's mother, Kristin Campbell, brought Child
to a Columbia hospital with severe burns caused by hot water from a shower. At
the time, Johnson and Campbell were in a relationship and living together, with
Child, at Campbell's home. Due to the severity of Child's burns, the hospital
transferred Child to a burn center in Augusta, Georgia. On October 19, 2015, after
police questioned Johnson and searched his home, Johnson was arrested and
charged with infliction of great bodily harm upon a child under South Carolina
Code section 16-3-95(A).

At trial, Campbell testified Child has a history of autism spectrum disorder, but is
highly functioning. However, Campbell said Child was not allowed to shower by
himself. Campbell testified that on the night Child was burned, she was too tired
to bathe Child, so Johnson offered to do it. Campbell heard Child screaming, and
when she got to the bathroom, she found Child curled up in the shower with
Johnson standing over him. Campbell further testified that after she removed
Child from the shower, she observed Child's skin peeling off. Finally, Campbell
stated that when she asked Child what happened, Child stated Johnson did it to
him.

The emergency room physician testified that when he asked Child about the burns,
Child look at Johnson and stated, "You did this to me." The director of pediatric
critical care, Dr. Richard Cartie, who treated Child at the Augusta Burn Center,
testified Child suffered burns on over forty percent of his body and suffered third-
degree burns on over twenty-six percent of his body. Dr. Cartie explained the
third-degree burns required Child to undergo skin grafting. He further testified it
was not possible for Child's burns to be self-inflicted and it was his medical
opinion that Child's burns were the result of child abuse.
Johnson was indicted for inflicting great bodily injury upon a child. A trial was
held in April 2017. The jury found him guilty as charged, and the court sentenced
him to twenty years in prison.

STANDARD OF REVIEW

"In criminal cases, we review the decisions of the trial court only for errors of
law." State v. Gilmore, 396 S.C. 72, 77, 719 S.E.2d 688, 690 (Ct. App. 2011).
Thus, "this [c]ourt is limited to determining whether the trial court abused its
discretion." State v. Edwards, 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009).
Accordingly, "[t]his [c]ourt does not re-evaluate the facts based on its own view of
the preponderance of the evidence but simply determines whether the trial court's
ruling is supported by any evidence." Id.

LAW/ANALYSIS

I. Independent Examination

Johnson argues the trial court erred in denying his motion for an independent
psychological examination of Child regarding Child's competency to testify at trial.
We disagree.

"The question of the competency of witnesses is to be determined by the trial
[court]," and "[the trial court's] determination will not be reversed unless a clear
showing of abuse of discretion can be made." State v. Green, 267 S.C. 599, 603,
230 S.E.2d 618, 619 (1976). "A child's competency to testify depends on showing
to the satisfaction of the trial [court] that the child is substantially rational and
responsive to the questions asked and is sufficiently aware of the moral duty to tell
the truth and the probability of punishment if he lies." S.C. Dep't of Soc. Servs. v.
Doe, 292 S.C. 211, 219, 355 S.E.2d 543, 547 (Ct. App. 1987). "If the child is
mature enough (1) to understand questions and narrate answers, (2) to perceive
facts accurately through the medium of the senses, (3) to recall them correctly, (4)
to relate a true version of the facts perceived, (5) to know the difference between
right and wrong, good and bad, (6) to understand it is right or good to tell the truth
and wrong or bad to lie, (7) to be willing to tell the truth, and (8) to fear
punishment if he lies, then he is competent to testify." Id.

A defendant requesting an independent examination of a child victim must show
he has a compelling need for such an examination. In re Michael H., 360 S.C. 540,
547, 602 S.E.2d 729, 732 (2004). When weighing a defendant's need for an
independent examination against a victim's right to privacy, the trial court should
consider

(1) the nature of the examination requested and the
intrusiveness inherent in that examination; (2) the
victim's age; (3) the resulting physical and/or emotional
effects of the examination on the victim; (4) the probative
value of the examination to the issue before the court; (5)
the remoteness in time of the examination to the alleged
criminal act; and (6) the evidence already available for
the defendant's use.

Id. at 547, 602 S.E.2d at 732-33 (quoting State v. Delaney, 417 S.E.2d 903, 907
(W. Va. 1992)).

At his pre-trial hearing, Johnson requested the court order an independent
psychological examination of Child. Johnson argued Child's young age, history of
autism spectrum disorder, and previous difficulty differentiating between the truth
and a lie were sufficient to show a compelling need for an independent
examination of Child's competency. The trial court, however, denied Johnson's
request, stating "there [would] be no psychiatric examination of [Child] at this
time" because the court had not yet been able to assess whether Child was
competent to testify.

After jury selection, Johnson renewed his motion, and the court heard proffered
testimony from Child. Based on Child's testimony, the trial court found Child was
competent to testify and denied Johnson's motion because "[it] d[id] not think, . . .
considering all those factors outlined in Michael H., that a psychological
examination would assist th[e] court." Following the proffered testimony, Johnson
renewed his motion.

On appeal, Johnson argues all six Michael H. factors were satisfied and the trial
court should have ordered an independent psychological examination to assess
Child's competency. However, Child's proffered testimony was sufficient for the
trial court to find Child was competent to testify because Child could differentiate
between the truth and a lie; was committed to being truthful; and was able to recall
details of the events resulting in Child's burns. Thus, we find the trial court did not
err in finding a psychological exam was not necessary to determine Child's
competency to testify at trial.
II. Expert Witness

Johnson argues the trial court erred in allowing the State to call an expert witness
when the State failed to give him notice of the purpose of the expert's testimony.
We disagree.

Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution must "disclose
evidence that is: (1) in its possession; (2) favorable to the accused; and (3) material
to guilt or punishment." State v. Kennerly, 331 S.C. 442, 452, 503 S.E.2d 214,
219-20 (Ct. App. 1998), aff'd, 337 S.C. 617, 524 S.E.2d 837 (1999). "Evidence is
material under Brady if there is a 'reasonable probability' that the result of the
proceeding would have been different had the information been disclosed." Riddle
v. Ozmint, 369 S.C. 39, 44-45, 631 S.E.2d 70, 73 (2006). A defendant asserting a
Brady violation must show the State failed to disclose evidence, in its possession
or known by the prosecution, that was favorable to the defendant as impeachment
evidence or was material to the defendant's guilt or innocence. Id. at 44, 631
S.E.2d at 73.

Rule 5 of the South Carolina Rules of Criminal Procedure requires the State to
make certain disclosures upon the defendant's request. Rule 5(d)(2), SCRCrimP,
states that if the State fails to disclose material as required, "the court may order
[the State] to permit the discovery or inspection, grant a continuance, or prohibit
[the State] from introducing evidence not disclosed[] . . . ." For the court to
prohibit the introduction of undisclosed evidence, a defendant must show he was
prejudiced by the State's failure to comply with his discovery request. See State v.
Wilkins, 310 S.C. 81, 84, 425 S.E.2d 68, 70 (Ct. App. 1992) ("[N]o constitutional
violation . . . arises unless the failure [to disclose] 'is of sufficient significance to
result in the denial of the defendant's right to a fair trial.'" (quoting United States v.
Agurs, 427 U.S. 97, 108 (1976))).

At trial, Johnson objected to the State calling Dr. Susan Lamb as an expert witness.
Johnson argued the State violated the discovery requirements under Rule 5,
SCRCrimP, by not disclosing Dr. Lamb's CV and disclosing a relevant medical
report only twenty minutes before Dr. Lamb was to testify. Rather than exclude
Dr. Lamb's testimony, the trial court ordered the State to turn over a copy of Dr.
Lamb's CV and granted Johnson a continuance. Johnson did not object to the trial
court's ruling. Dr. Lamb later testified she had physically examined Child, as well
as reviewed photos of Child's burns, and diagnosed Child as a victim of child
abuse.
The State argues Johnson's Brady argument is not preserved for review because
Johnson never raised the issue of a Brady violation to the trial court. We agree and
find that, although Johnson argued the discovery violation was a "Rule 5 Brady
violation," Johnson did not provide any substantive arguments as to the Brady
disclosure rule, and the trial court based its ruling solely on Rule 5, SCRCrimP.
See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is
axiomatic that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the trial judge to be preserved for appellate
review."). As to the Rule 5 violation, we first find the trial court did not err in
allowing the State to call Dr. Lamb as a witness because Johnson did not object
when the trial court declined to exclude Dr. Lamb's testimony and instead granted
Johnson a continuance to prepare for cross-examination. We also find the trial
court's order for the State to provide Johnson with Dr. Lamb's CV and the grant of
a continuance, which Johnson did not object to, remedied the discovery violation.
Thus, the trial court did not err in allowing the State to call Dr. Lamb as a witness.

III. Motions for Mistrial

Johnson argues the trial court erred in denying his motions for a mistrial because
the State's expert witness testified, without proof, that Johnson burned Child "as a
form of punishment . . . ," and the State referred to "discipline" after the court's
curative instruction. We disagree.

"The decision to grant or deny a mistrial is within the sound discretion of the trial
court." State v. Harris, 382 S.C. 107, 117, 674 S.E.2d 532, 537 (Ct. App. 2009).
"The trial court's decision will not be overturned on appeal absent an abuse of
discretion amounting to an error of law." Id. "The granting of a motion for a
mistrial is an extreme measure that should only be taken if an incident is so
grievous that the prejudicial effect can be removed in no other way." Id.

At trial, Johnson objected when Dr. Cartie, who treated Child at the Augusta Burn
Center, testified, "[C]hild reported to me that he had been put into the shower and
sprayed with hot water as a form of punishment . . . ." (Emphasis added.). Later,
Johnson moved for a mistrial, arguing, "At this point, the jury has heard that word
discipline,1 which is why it needs to be struck, but we're moving for a mistrial at
this point because I don't think that bell can be unrung." (Emphasis added.). The
court denied the motion and gave a curative instruction informing the jury it should

1
Dr. Cartie used the word "punishment," whereas Johnson's counsel used the
word "discipline."
not consider the doctor's testimony that Johnson burned Child "as a form of
punishment." (Emphasis added.). Johnson did not object to the curative
instruction. He made a subsequent motion for a mistrial after the prosecutor twice
stated Johnson tried to convince an investigator that he had not been angry at or
trying to discipline Child. The trial court again denied the motion.

On appeal, Johnson asserts the trial court's curative instruction became
meaningless when the prosecutor later suggested Johnson had tried to convince an
investigator that he had not been disciplining Child when Child was burned.
Johnson argues the prosecutor's repeated references to punishment and discipline
tainted the trial such that it was necessary for the trial court to grant a mistrial.

As to Dr. Cartie's reference to a "punishment," we find the trial court properly
cured any prejudice to Johnson by striking Dr. Cartie's testimony that Child was
sprayed with hot water "as a form of punishment . . . ." See State v. White, 371
S.C. 439, 445, 639 S.E.2d 160, 163 (Ct. App. 2006) ("If the trial judge sustains a
timely objection to evidence and gives the jury a curative instruction that it be
disregarded, the error is deemed to have been cured by the instruction."); State v.
Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129 (Ct. App. 2005) ("Generally, a
curative instruction is deemed to have cured any alleged error.").

As to the prosecutor's use of the word "discipline," we find the issue is not
preserved for our review because Johnson did not request a curative instruction,
even after the court offered to give one. See State v. Tucker, 324 S.C. 155, 169,
478 S.E.2d 260, 267 (1996) (finding Appellant waived the issue because he refused
the trial judge's offer of a curative instruction).

IV. Directed Verdict

Johnson argues the trial court erred in finding there was sufficient evidence for the
jury to find he acted with intent to cause great bodily harm to Child and denying
his motion for a directed verdict. We disagree.

"On appeal from the denial of a directed verdict, this [c]ourt views the evidence
and all reasonable inferences in the light most favorable to the State." State v.
Butler, 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014). "If the [S]tate has
presented 'any direct evidence or any substantial circumstantial evidence
reasonably tending to prove the guilt of the accused,' this [c]ourt must affirm the
trial court's decision to submit the case to the jury." State v. Hepburn, 406 S.C.
416, 429, 753 S.E.2d 402, 409 (2013) (quoting State v. Cherry, 361 S.C. 588, 593-
94, 606 S.E.2d 475, 478 (2004)). "[An] appellate court may only reverse the trial
court if there is no evidence to support the trial court's ruling." State v. Gaster, 349
S.C. 545, 555, 564 S.E.2d 87, 92 (2002).

Based on our review of the evidence and viewing all reasonable inferences in the
light most favorable to the State, we find the State presented sufficient evidence for
the jury to find Johnson intentionally burned Child, including both Child's
testimony and Campbell's testimony that Johnson intended to put Child in the
shower, as well as expert testimony that Child's burns were not self-inflicted and
Child had been the victim of child abuse. Thus, we find the trial court did not err
in denying Johnson's motion for a directed verdict.

V. Photographs

Johnson argues the trial court erred in admitting cumulative photographs of Child's
burns. We disagree.

"The admissibility of evidence is within the sound discretion of the trial [court]."
State v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 263 (Ct. App. 2000).
"Accordingly, evidentiary rulings of the trial court will not be reversed on appeal
absent an abuse of discretion or the commission of legal error which results in
prejudice to the defendant." Id.

At trial, the State sought to admit several photographs of Child's burns taken at the
hospital. Johnson objected to the admission of three of the photographs as
cumulative because they showed injuries that were already before the jury in the
form of other exhibits. The court, however, found the photographs were not
cumulative because they showed Child's burns from different angles and were
necessary for the State to prove Child suffered great bodily injury.

We hold the trial court did not abuse its discretion in finding the three photographs
were not cumulative because they showed Child's injuries from different angles
and had probative value as to the State's burden to prove Child sustained great
bodily injury.

VI. Jury Instruction

Johnson argues the trial court erred by refusing to instruct the jury (1) on accident
because there was no evidence Johnson intentionally caused Child's injuries, and
(2) that the great bodily injury statute required specific intent. We disagree.
"The law to be charged to the jury is to be determined by the evidence presented at
trial." State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 835 (1989). "In reviewing
jury charges for error, [the appellate court] considers the trial court's jury charge as
a whole and in light of the evidence and issues presented at trial." State v. Logan,
405 S.C. 83, 90, 747 S.E.2d 444, 448 (2013). "A jury charge is correct if, when
read as a whole, the charge adequately covers the law." Id. at 90-91, 747 S.E.2d at
448. "A jury charge that is substantially correct and covers the law does not
require reversal." Id. at 90, 747 S.E.2d at 448. "Jury instructions should be
considered as a whole, and if as a whole, they are free from error, any isolated
portions which may be misleading do not constitute reversible error." Id. at 94 n.8,
747 S.E.2d at 449 n.8. "To warrant reversal, a trial [court]'s refusal to give a
requested jury charge must be both erroneous and prejudicial to the defendant."
State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 (2010).

At trial, the court denied Johnson's request for a jury charge on specific intent
because the court found section 16-3-95(A) of the South Carolina Code (2015)
does not require the State to prove Johnson specifically intended for Child's burns
to be as bad as they were. The court also declined to instruct the jury on accident,
finding there was no evidence to support the theory that Johnson accidentally
inflicted harm to Child.

We find the trial court did not err in not charging the jury with accident because
the court instructed the jury on the defense of accident. We also find the trial court
did not err in finding section 16-3-95(A) required general intent rather than
specific intent. See Mattison, 388 S.C. at 479, 697 S.E.2d at 583 ("The trial court
is required to charge only the current and correct law of South Carolina.").

CONCLUSION

Accordingly, Johnson's conviction for inflicting great bodily harm upon a child is

AFFIRMED. 2

SHORT, THOMAS, and GEATHERS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.